State v. Mosley

Decision Date27 June 1978
Docket NumberNo. 4146,4146
Citation119 Ariz. 393,581 P.2d 238
PartiesSTATE of Arizona, Appellee, v. David Lee MOSLEY, Appellant.
CourtArizona Supreme Court

Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer III and Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.

Stanley M. Hammerman, Phoenix, for appellant.

HAYS, Justice.

Appellant David Lee Mosley was charged by information with possession of heroin for sale (A.R.S. §§ 36-1001, 36-1002.01) and possession of marijuana (A.R.S. §§ 36-1001, 36-1002.05). Following the denial of his motion to suppress certain physical evidence appellant was found guilty of both counts by a jury. He then pled "no contest" to an allegation of a prior conviction for attempted robbery; the trial court ultimately sentenced Mosley to concurrent terms of 10 to 12 years imprisonment (A.R.S. § 13-1649). We have taken jurisdiction of this appeal pursuant to 17A A.R.S. Rules of the Supreme Court, rule 47(e)(5).

On the evening of November 4, 1976 undercover Officers Bradley and Kurth of the Phoenix Police Department were conducting surveillance of a residence at 101 South 28th Drive in Phoenix. Other officers had previously developed information, of an undisclosed nature, which had led the Department to suspect that residents of that address were dealing in stolen property and narcotics. Members of the surveillance team knew that search warrants previously had been served at this address, but did not know the results of those prior searches. They had no specific suspects, but did have a list of vehicles which had been frequently observed at the address. Kurth and Bradley, in plain clothes, began visiting with neighbors in the front yard of the house across the street from the residence in question, at about 5:45 p. m.; they were approximately 50-100 feet away from the residence. At 6:00 p. m. a blue 1966 four-door Pontiac sedan arrived at the house, but left within a few minutes. That vehicle was one mentioned on the list previously prepared by other field officers. At 6:20 p. m. the car returned and parked in the driveway of the residence. Appellant and another man, Edward Mays, emerged from the car and carried some unspecified articles from the car trunk into the house. Shortly before 7:00 p. m. appellant and Mays began carrying items out of the house and placing them into the vehicle's trunk. Kurth and Bradley observed the loading from the front yard across the street; occasionally Kurth entered the front of that residence and used binoculars to make his observations. The two suspects loaded stereo equipment, speakers, and a .22-caliber rifle into the car trunk. During one trip out to the car, Officer Bradley observed one of the two men carrying a brown leather duffel bag and the other carrying a woman's purse, but was unable to recall which man carried which item; they were both placed in the trunk. Officer Kurth testified that Mays carried out the duffel bag. After the trunk was loaded, Kurth observed the appellant carrying a red hand towel, which he was folding in his hands, from the front door of the residence; appellant leaned into the driver's side of the car and placed the red towel somewhere inside, although Kurth was unable to tell whether it was in the front or back seat. Appellant then returned to the residence and nothing further was loaded into the car. Within a few minutes the two subjects again came out of the residence, accompanied by two females, and all four persons entered the automobile. Edward Mays took the driver's position behind the steering wheel and Vera Staples sat beside him in the front seat. Appellant and Frieda Cowley sat close together in the back seat, near the left rear door and immediately behind the driver Mays. Appellant and Frieda Cowley had to enter the right rear door and slide across the back seat to reach this position; the left rear (driver's side) door of the automobile did not work. The vehicle then backed out of the driveway and left the area.

Officer Kurth advised other officers of the surveillance team of his observations by radio. When the Pontiac pulled away from the residence, surveillance was continued by Officer Miller in an unmarked vehicle. He observed the Pontiac as it stopped briefly at two separate locations; nothing was unloaded from the car on either occasion, and all four people resumed exactly the same positions within the car after each stop. At around 7:30 p. m. the suspect vehicle arrived at the El Rancho Motel on West Van Buren Street and pulled into a small parking area near the office. Appellant slid across the rear seat, exited the right rear door and walked into the motel office. Miller then decided to approach the occupants of the car "to find out who he (Mays) was, get some identification, see if he had any weapons on him" and "to see where he was going in case these items was stolen." Officer Miller drove into the driveway behind the Pontiac, accompanied by uniformed officers in marked patrol cars. As Miller approached the Pontiac on foot, Frieda Cowley slid across the back seat, exited the right rear door and headed for the motel office. Miller directed uniformed officers to detain her and the appellant, as he approached the driver Mays. He asked Mays to exit the vehicle, and Vera Staples remained in the front seat. After identifying himself to Mays and inspecting Mays' driver's license, Miller "patted Eddie Mays down for weapons to find out if he had any guns or knives or anything hidden on him." Then, according to Miller's testimony:

"(B)ecause Vera Staples was still in the vehicle, I shined my flashlight inside to see if there were any weapons available or ready inside of the car.

"I observed a part of a plastic baggie of marijuana in the back seat sticking out from a red towel.

"It was lying on the floorboard on the left, rear, right behind the driver's seat, and it was just partially covered by a red hand towel."

After Miller made these observations, appellant and Cowley were arrested for possession of marijuana. Upon retrieving the baggie of marijuana from the floor of the car, two other plastic bags were also discovered wrapped within the same red towel. One of the bags contained three balloons full of a powder which later proved to contain heroin; the other bag contained a condom which also contained heroin. A field test at the scene showed a positive reaction for the presence of opiates within the powder, and appellant and Cowley were also arrested for possession of narcotic drugs for sale. After the arrests, the vehicle trunk was searched and the stereo equipment, speakers, .22-caliber rifle, duffel bag, and women's purse were retrieved. The purse contained a pair of men's boxer shorts, tee shirt and yellow robe; these items were tried on by appellant prior to trial, and appeared to fit him properly. The purse also contained more plastic baggies, one holding syringes and incense and one holding a bag of about 35 balloons, a stainless steel knife blade, two spoons, a funnel, a burned bottle cap, two cotton balls with brown residue, a can of men's shaving powder and tissue paper. Subsequent laboratory analysis revealed that the heroin contained within the condom was 8% Pure and weighed 22.9 grams, while the three balloons contained a total of .66 gram of 8% Pure heroin; Miller's characterization of the substance within the third baggie as marijuana proved to be correct.

At trial, the items found within the car interior and trunk were introduced into evidence, over appellant's objections. Detective David Guzzetta, with 10 years total police experience and 5 years undercover narcotics experience in the Phoenix area, testified that the street value for the 22.9 grams of heroin contained in the condom was $800-$1,000, and the street value for the three balloons was approximately $60 each; that the heroin in the condom could be divided for resale into about 229 balloons similar to the three in evidence; that the paraphernalia in the purse included items commonly used to inject heroin into the veins of a user and other items used to divide and "cut" large amounts of heroin into smaller amounts for resale; that based on the presence of the paraphernalia and on the amount of heroin found, the heroin was probably intended for resale, rather than simply for personal use. The State also introduced photographs of appellant wearing the clothing found within the purse. The defense presented testimony from Vera Staples, Edward Mays and Frieda Cowley in an attempt to create the inference that the narcotics in the Pontiac were the property of Frieda Cowley rather than the appellant. Appellant did not testify. On rebuttal, the State offered evidence of prior statements by Frieda Cowley, made to a Phoenix police officer on the night of her arrest, to the effect that the purse discovered in the trunk of the Pontiac belonged to her, that she packed clothing but no paraphernalia into the purse, that there was no paraphernalia in the purse when she gave it to appellant, that appellant loaded the purse into the car, and the narcotics found in the car interior did not belong to her.

THE "AUTOMOBILE SEARCH"

Appellant contends that the trial court erred in failing to suppress all items of evidence obtained from the Pontiac automobile, because such items were obtained as the result of a search which violated the Fourth and Fourteenth Amendments to the United States Constitution. We do not agree. Since Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), it has been established that a "stop and frisk," as opposed to a full " search and seizure" may be justified by facts which give rise to only a "mere suspicion" of criminal behavior, even though there is no probable cause to make an arrest. See also Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Dean, 112 Ariz. 437, 543 P.2d 425 (1975).

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